Drones

Sen. Rand Paul Is Right to Oppose Targeted Killing of U.S. Citizens

He is standing up for the principle that secret law has no place in a constitutional democracy.

|

Sen. Rand Paul
U.S. Senate

Sen. Rand Paul (R-Ky.) has quite rightly called on the Obama administration to publicly disclose its legal justifications for the claimed power to order the killing, without trial or hearing, of U.S. citizens abroad who are suspected of being terrorist leaders planning attacks against the United States. The dispute came up, most recently, in the context of David Barron's successful nomination to a seat on the U.S. Court of Appeals for the First Circuit. As a lawyer in the Office of Legal Counsel, Barron reportedly co-authored at least two memos providing the legal rationale for the administration's decision to order the killing of Anwar al-Awlaki, a U.S. citizen and propagandist for Al Qaeda in the Arabian Peninsula (AQAP).

Jennifer Rubin incorrectly accused Sen. Paul of "misunderstand[ing] the Constitution" which, in Rubin's view, "affords the executive branch replete powers in the foreign policy realm." Quoting John Yoo, Rubin suggests that Sen. Paul's approach would "[include] terrorists among those afforded constitutional protections."

Al-Awlaki was no saint, and that can make the issue seem trickier than it is. But calm evaluation of some basic facts make it clear that Paul is right to insist that the Obama administration explain its rationale (especially before Barron is confirmed to a lifetime position on a federal appellate court), and Rubin is wrong to suggest that Paul is defending terrorists.

These are the facts that matter, and show why Rubin's criticism is misplaced. First, although al-Awlaki was clearly a propagandist for AQAP, that is not why the Obama administration placed him on a kill or capture list (meaning that he could be killed if capture was not feasible). The administration claimed that al-Awlaki was a senior leader in AQAP involved in planning attacks against the United States that posed an imminent threat. This claim has never been proven. The Supreme Court has made clear that due process requires a meaningful hearing before a neutral decisionmaker before a U.S. citizen can be imprisoned, let alone killed. How, then, can the administration justify al-Awlaki's killing without hearing or trial?

The argument seems to depend on an implausibly twisted definition of due process. Attorney General Eric Holder claims that due process need not be judicial processβ€”in other words, due process can be satisfied by a purely internal review within the executive branch, with no judicial oversight and limited congressional involvement. As Harvard Law professor Noah Feldman points out, this is an unprecedented definition of due process. As the Supreme Court explained in the 2004 Hamdi decision, due process plays an essential role in separation of powers, preventing the concentration of power in one branch of government (here, the executive branch). Holder's definition turns due process on its head. It is essential for the public to know whether the administration relied on something like Holder's approach in the Barron memos written to justify al-Awlaki's killing.

This helps expose the bankruptcy of Rubin's claim that the executive branch has "replete powers" in the area of foreign policy. Not so.

The framers of the Constitution quite consciously broke with the then-prevailing British model, which did assign plenary or essentially complete power over foreign affairs to the monarch. The framers, of course, were creating a republic, not a monarchy. The Constitution they drafted divided foreign affairs powers between the President and Congress. The President is Commander in Chief, but Congress has the power, for example, to declare war, to regulate commerce with foreign nations, define offenses against the laws of nations, and ratify treaties in the Senate. It is true that there is a long-standing myth that the President has plenary control over foreign affairs.

Drone
NATO

This myth has what seems to be solid support in the Supreme Court's 1936 Curtiss-Wright decision, which describes the President as the "sole organ" of foreign policy, citing a speech John Marshall gave in 1800 that used that term. But Marshall never went as far as the Court suggested. He described the President as the sole organ of the United States in carrying out treaties duly enacted by the Senate, not as the sole organ in the sense of possessing plenary or "replete" power over foreign affairs.

Even if Marshall had said this, he would have been wrong. The Constitution does not, in fact, assign the President control over foreign affairs. Rubin's casual reference to "replete" executive power in this area is sloppy and dangerous. The President, like Congress and the courts, does not possess unlimited power. Presidential power over foreign affairs is shared with Congress and, to some extent, with the courts (in the sense that they may exercise judicial review over some acts). Checks and balances cannot be swept aside so easily. It is Rubin, not Paul, who misunderstands the Constitution if she believes the President may always act unilaterally when it comes to foreign affairs. Outside of the emergency context (which was not, it appears, claimed by the administration here), such power simply does not exist.

Although Rubin suggests otherwise, Paul's criticism of the targeted killing program and his insistence that the Obama administration make the Barron memos available to the public has nothing to do with defending terrorists. To the contrary, he is rightly standing up for the principle that secret law has no place in a constitutional democracy, and that even U.S. citizens like al-Awlaki who are clearly no angels cannot be killed on the basis of unproven claims.

Below, see author Chris Edelson discuss presidential power with Reason's Nick Gillespie.

NEXT: Brickbat: Banned in Heber City

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

    1. Oooh, slick! Both posts point to the same comment thread.

  1. Jennifer Rubin incorrectly accused Sen. Paul of “misunderstand[ing] the Constitution” which, in Rubin’s view, “affords the executive branch replete powers in the foreign policy realm.”

    Once you step outside the United States (probably continental) then the Bill of Rights is null and void. (Also, in the United States mostly.)

    1. How many elected politicians could, if asked, recite their oath of office now, months or years following their inaugurations, by heart and without prompting?

      I would be less than 5%. Every one should recite it at least twice a day, like a prayer.

      1. “I [state your name] do solemnly swear, that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend, the Constitution of the United States.”

        At least, that’s from memory. I believe the Constitution also allows the replacing of swear with affirm for people whose religious views conflict with swearing oaths. And the words “So help me God” were most emphativally not in the original.

        I don’t know any of the oaths of lesser offices.

        1. “I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

          There you go. You did well.

          And the words “So help me God” were most emphativally not in the original.

          Thank God.

          1. It isn’t only a Presidential problem. Congress should recite their oath in unison every time they open in the morning. If you think Obama or even the whole US government getting out of control, whose job is it to check this by writing law, holding the purse strings, and confirming the judiciary, not to mention vote on a declaration of war?

        2. I do solemnly swear that I will never use the Oxford comma as that is in England and this is the United States of America, so help me Reason.

          1. You are wrong in your objection. How the duck are supposed to know.if.you’re in the Bed, Bath, or Beyond section of the.store otherwise?

          2. I will never use the Oxford comma as that is in England and this is the United States of America, so help me Reason.

            At least you agree with the Canadians.

            a majority of style guides mandate use of the serial comma, including The MLA Style Manual, The Chicago Manual of Style, Strunk and White’s Elements of Style, and the U.S. Government Printing Office Style Manual. The Associated Press Stylebook and the Stylebook published by The Canadian Press for journalistic writing advise against it.

            1. I love the Oxford comma. If the Oxford comma were a beautiful woman I would wine, dine, and make sweet love to her.

          3. Stupid is as stupid does.

        3. Not you; by “every one” I meant every one *of politicians*.

      2. You’d think that would be the ‘opening prayer’ to begin a legislative session. “OK, we’re about to do the work of government, so let’s keep in mind our oath:”

        If us wee citizens are expected to pledge our stupid fucking allegiance, why shouldn’t legislators do the equivalent?

    2. Rubin’s seething hatred of Rand is going to be real funny to watch over the next few years.

  2. Can we agree, however, that sroning the Reason staffers who post the same article twice is acceptable since they’ve violated the NAP? πŸ˜‰

    1. That typo should have been “droning”, since that’s what the article is about. “Stoning”, however, would fit otherwise.

      1. I thought you just meant that all you had was one of the old alpha model drones that was only equipped with a rock thrower instead of hellfire missiles.

    2. It wasn’t the same article twice. One was the.article, another was a meta-article linking to the actual.

      1. I hate meta articles, they waste my time by making me check to see if there’s a way to avoid additonal page loads.

        1. I thought I was the one whose shtick was complaining about forcing additional page loads. πŸ˜‰

          1. You know who else gave too many loads to pages?

            1. The Bookshitter of Baltimore?

  3. I don’t listen to him anymore (because I’m no longer stuck in my car for two hours a day), but I used to enjoy the way Sean Hannity would refer to our “God-given rights,” but then somehow maintain that these rights mysteriously vanished if one were outside U.S. borders. God is American — who knew?

    1. “God bless the United States of *America*”, DUH!

    2. Hannity is a cock.

      1. You’re a Great American ?

        1. He used to be on the radio during my drive home, and I got so sick of hearing him say that. The only reason I listened was for the Hate Hannity Hotline, which I guess he doesn’t do anymore. Couldn’t stand the truth I guess. Cock.

    3. I couldn’t listen to him even if I did agree with him. There’s nothing more boring than 2 people kissing each others ass on the radio.

      1. His voice is fucking awful as well.

  4. al-Awlaki presents a difficult question, but the murder of his son does not. A 16 y.o. boy who travels to Yemen to see his father – only to find out that he has been killed – posed no threat to the US.

    1. Perhaps they were attempting to forestall the Inigo Montoya Effect.

  5. Good for him.
    I still claim the man is a populist and will do almost ANYTHING to attain higher political office.

    Even if I am only 50% correct, you folks are going to be very disappointed if he ever has to make a real decision (as the POTUS and others do).

    We have a saying around my companies:
    “Everything is easy for those who don’t have to do it”.

    I think that applies here. The stuff he stands his ground on costs him nothing – in fact, it pays him in political dividends. Making hard choices which hurt you is another story.

    Oh, and the American people – although we don’t practice tyranny of the majority – approve of (polling) the use of drones in a limited fashion to avoid boots on the ground. Be that as it may, my concern is not with a single American jihadist, but with the concept that if we are allowed to use Drones anywhere (Yemen is OK because their gubment approves, Pakistan may be another story), then so can everyone else.

    But I guess, like satellites, we are going to have to get used to it. You can claim satellites don’t directly kill people but good intelligence had killed more than many weapons (in the end).

    1. I’ll open your eyes a bit for you here – Imagine if a really icky Republican, like Newt or Santorum got elected in 2016 and began to asset the same executive powers that the Lightworker has. Not so much fun when your guy’s not in charge, huh?

      1. Actually, that doesn’t open my eyes at all.

        I would expect a republican to do 10X as much. In fact, the whole concept of the Bush admin was to do so much wrong that you couldn’t even get your mind about it. That’s an effective strategy.

        1. I would accuse a republican of doing 10X as much.

          FIFY

    2. The stuff he stands his ground on costs him nothing – in fact, it pays him in political dividends. Making hard choices which hurt you is another story.

      Oh, and the American people – although we don’t practice tyranny of the majority – approve of (polling) the use of drones in a limited fashion to avoid boots on the ground.

      So it costs him nothing to stand his ground on something that the American people oppose in polling?

      1. No, it doesn’t….

        The polling depends on how you ask. If you ask:

        Is it OK for the President to kill Americans without asking?

        you will get different results than:

        Is the targeted use of drones to avoid boots on the ground, ok?

        That’s the entire point of being a populist! Express things in a manner so as not to offend.

        Look at Rand’s abortion stance! “We are not going to take any big actions to change things” – while declaring he is 100% anti-abortion.

        That should give you a hint.

  6. Rubin really is one of the worst.

  7. “Al-Awlaki was no saint, ”

    This seems to be an article of faith among those writing articles on him, but is there any empirical evidence of Al-Awlaki planning or helping to plan attacks on the US? Any empirical evidence of him exhorting others to attack America? When I search, all I can find is historical lectures on Islam and Muhammad.

    Is this guy guilty of nothing more than insulting the US in an unacceptably eloquent way?

  8. Wait and see how much power this professional, habitual, career politician will want if he (Rand Paul) becomes President of The United States. It’s amusing how libertarians are “placing their bets” on this Kentucky race horse in the belief that he is going to support their principles, real and imagined. Unbelievable!

    1. I think disappointment is inevitable because fundamentally the American people are not libertarian. At the same time, he’s clearly the most libertarian man in the Senate, and has exceeded expectations so far.

      1. Actually, taking the “cheap” stance should not be exceeding expectations, unless you too are a populist.

        Look at his “choice” stance – there is an issue where he actually has to says what he would do or not do.

        While declaring himself firmly pro-life and anti-abortion, he says he would not do anything to change the status quo!

        It saddens me that folks like you don’t seem to understand how easy it is to just say things. Can you really be conned just by BS talk?

      2. John Thacker,

        Thanks for your civil reply to my comment. If you believe that the American people are not fundamentally libertarian, what do you believe they are – politically/ideologically?

        I realize that my question is very general, very broad, but I ask it anyway. I believe that the majority of the American people are probably apolitical. The media attempts to say otherwise, but deep down, I think Americans tend to dislike/mistrust politicians and politics, and always have. (That sentence was too long).

        I will be interested in your opinion. Thanks,

        Also, thanks again for the civil reply. That’s not what I usually find on this site.

        Just a thought, but I believe that we would be a lot better off if The Presidential terms were six years. Six years is long enough for anyone to be President. Instead of bitching about Obama, he would be gone by now, and people could be bitching about someone else.

        As it is, everything will drag on for two and a half more years, without much of anything getting done, except a lot of arrogant politicians running for President.

  9. We got to see Wyden and Udall swallow their objections to the drone memos in the name of the Party, and getting David Barron confirmed. So we’ve established how shallow their principles really are.

    1. Of course, to those who know even a bit of politics, that comes as no surprise at all. The current right is this country is based 100% on populism and money – and has absolutely nothing to do with ethics, morals, etc….

      To be fair, the left is probably only 50% based on such – and the right maybe 10-20%. But in the case of the right – they are mostly “practical” like the Kochs – that is, if we can buy the gubment and be allowed to spew more pollution and make more money, that’s the kind of government we approve of.

      1. Nice to demonstrate that you know absolutely nothing about the Kochs:

        [David Koch as L.P. vice presidential candidate] backed the full legalization of abortion and the repeal of laws that criminalized drug use, prostitution and homosexuality. He attacked campaign donation limits and assailed the Republican star Ronald Reagan as a hypocrite who represented “no change whatsoever from Jimmy Carter and the Democrats.”

        1. Does this make the Kochs libertarians? Are the Kochs liberals? I have read comments putting them in a Conservative camp.

          Personally, I put them in The Rich People’s Party, where people of their wealth can say just about anything they want, and then change their minds when they feel like it.

          No matter what (in my opinion) these people send the message to the general populace that if you don’t have any money then your political ideology has no value either.

        2. Well, great that you grabbed some ancient history that I knew about……

          Perhaps you can explain why 100% of Koch political money goes to pols who pass legislation VASTLY more conservative than even Reagan would even have considered?

          This fluff was from well before the Kochs figured out how they could start and buy institutions, media and even the SCOTUS and put together billions of dollars dedicated to the far right. I could give a shit what they SAY or what they SAID. What they have DONE is buy this country and make it clear that ONLY money talks, and the people walk…….

          I know quite a bit about the Kochs. Follow the money, my friend. They have bought and paid for much of the republican party – and, for some reason, they don’t give anything to those who are “socially liberal” and “anti-war” – (the Democrats)……

          Instead, they push pols who are chickenhawks, neo-cons, neanderthals (socially), etc….claiming they are doing so because these are the “right” people.

          Even you should be able to see that.

  10. So what proof do you have that Al-Awlaki was ‘no saint’, Edelson?

Please to post comments

Comments are closed.